To Canada’s chagrin, WTO must defend EU’s seal products ban

Robert Howse, Joanna Langille and Katie Sykes

Special to The Globe and Mail

Published Friday, Feb. 15 2013, 5:00 AM EST

A giant inflatable baby seal is disposed in front of the European Parliament in Strasbourg in this May 5, 2009, file photo. The European Parliament adopted legislaton banning seal products in its member nations on Sept. 16, 2009. (Vincent Kessler/Reuters)

The World Trade Organization is valued as a watchdog against politically motivated efforts to prop up dying industries. Canadian sealing is just such an industry: Out of sync with modern economic, environmental and ethical realities, it has been kept on life support through government support. Now Canada’s government has turned to the WTO itself to keep this relic artificially alive. As Canadian international trade lawyers who all have cherished connections to Atlantic Canada, we have filed a “friend of the court” brief at the WTO to oppose Canada’s claim.

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Canada’s target is the European Union, which imposed a ban on seal products in 2009, after years of scientific study and public consultation. European legislators voted overwhelmingly in favour of the ban – 550 out of 736 members of parliament. The ban is widely supported by the European public.

Fortunately, Canada’s legal case is untenable because the EU legislation is perfectly consistent with its trade obligations.

Canada says the European seal products ban discriminates against Canadian goods, even though the ban actually applies to all seal products – domestic and foreign – in exactly the same way.

Canada attacks the European ban because it has an exception for seal products that are the result of subsistence hunting by aboriginal peoples. According to Canada, treating traditional aboriginal hunting differently is “ethnic” discrimination. Canada’s argument flies in the face of centuries of Canadian law. The Canadian Constitution enshrines respect for the cultural autonomy and traditions of our aboriginal peoples. Legal distinctions based on those principles are recognized as valid, and even close to sacred, in Canada’s own laws and constitution.

Canada’s accusations of protectionism against Europe are hypocritical. The Canadian sealing industry itself depends on state intervention to protect it from the competitive pressures that an ordinary business would face. The seal slaughter costs Canada more to support than it actually earns. A study in 2010 at the University of Guelph found that ending the commercial slaughter would save Canada at least $7-million a year. Challenging the EU ban alone will cost Canada an estimated $10-million.

Canada also argues that the EU could have dealt with its citizens’ concerns through a system of certification and labelling to show that seals were killed without unnecessary cruelty. This defies reality. It would involve close inspection of the hunt – not feasible in the vast geographical areas and difficult conditions. If such a system were practical, the Canadian government or the industry would already have tried it.

Furthermore, there are express exceptions in WTO law allowing countries to regulate to further important policy goals, even if doing so involves some incidental discrimination. Among these exceptions are the protection of public morals and the life and health of animals. The EU ban fits in both categories. The EU and European member states consider the protection of animal welfare a moral imperative.

Animal welfare legislation, like other moral issues, touches on questions that go to the heart of cultural identity and distinctiveness. Trade agreements should not require this moral pluralism to be homogenized.

European lawmakers and the current Canadian government have different policies when it comes to seal hunting. The EU has made a democratic choice to express in law its view that the seal hunt is cruel and morally indefensible, and to ensure that EU citizens will not be made complicit in that cruelty through their purchases. The WTO must respect the rights of countries to pass laws that reflect the sincerely held moral beliefs of their citizens. Otherwise its image will be tarnished at a time when it most needs broad public and political support to remain relevant, in a world where countries are increasingly choosing to bypass the WTO system and negotiate bilateral trade deals instead.

Robert Howse is a professor of international trade law at New York University. Joanna Langille is a doctoral student in law at the University of Toronto. Katie Sykes is a doctoral student in law at Dalhousie University.